New Health New Zealand Inc. v Attorney-General

• Jurisdiction: New Zealand
• Judge: Hon Justice KÓS
• Judgment Date: 04 September 2015
• Neutral Citation: [2015] NZHC 2138
• Docket Number: CIV-2015-485-265
• Court: High Court
• Date: 04 September 2015

UNDER the Judicature Amendment Act 1972 and the Declaratory Judgments Act 1908

BETWEEN

New Health New Zealand Inc

Plaintiff

and

Attorney-General

Defendant

[2015] NZHC 2138

CIV-2015-485-265

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application for judicial review challenging the making of regulations while there were proceedings relating to their subject matter awaiting an appeal hearing — the plaintiff opposed the fluoridation of public water supplies — in 2014 it issued unsuccessful judicial review proceedings against the defendant seeking declarations that two fluoridating agents were medicines for the purposes of the Medicines Act 1981 (MA) — the HC held that the compounds were not medicines but suggested that the Ministry of Health consider promoting regulations to further clarify the status of the compounds — the plaintiff had lodged an appeal against that decision — regulations providing that water fluoridating agents were not medicines were passed prior to the hearing of the appeal — there had been a six week period for submissions instead of the usual 8 weeks — whether the regulations were made for an improper purpose, namely to pre-empt a matter currently before the court — whether the decision to promote the regulations was inconsistent with s27(2) New Zealand Bill of Rights Act 1990 (right to apply, in accordance with law, for judicial review of determinations) — whether there had been a failure to consult adequately.

Appearances:

L M Hansen for Plaintiff

D N Soper and K Stone for Defendant

JUDGMENT OF THE Hon Justice KÓS

1 Amending regulations have been madea specifying that fluoridating agents used for the fluoridation of drinking water are not medicines for the purposes of the Medicines Act 1981. 1 The regulations reinforce a conclusion reached by this Court last year in construing the Act.

2 Are these regulations lawfully made?

Background

3 The plaintiff (“New Health”) opposes the fluoridation of public water supplies. New Health and similar organisations have in recent years pursued a range of strategies in opposition to the fluoridation of public water supplies. Litigation is one of these strategies.

4 In 2013 New Health brought judicial review proceedings against the South Taranaki District Council, challenging its decision to fluoridate its water supplies. Hansen J dismissed that claim. 2

5 In 2014 it issued further judicial review proceedings, this time against the Attorney-General, seeking declarations that two fluoridating agents were medicines for the purposes of the Act. 3

6 Collins J dismissed New Health's claim. 4 In short, he held that the compounds were not medicines for the purposes of the Act. Introduction of the compounds into public water supplies did involve their administration to consumers, and for therapeutic purposes. But diluted to a maximum of 1.5 mg/l they fell below a 10 mg/l threshold required to constitute a medicine.

7 Collins J suggested however that the Ministry of Health consider promoting regulations to further clarify the status of the compounds: 5

While I am confident my conclusion is correct, the Ministry may wish to consider recommending a regulation that exempts HFA and SSF from the definition of “medicine” when those compounds are used to fluoridate water.

8 New Health filed an appeal on 28 October 2014. It applied for the appeal to be fast tracked.

9 The Crown resisted the plaintiff's fast track application. Crown counsel advised that the Ministry intended to recommend regulations to confirm the status of the compounds. This would take at least three months. That would mean “this appeal may become moot”.

10 The Court of Appeal declined to fast track the appeal. Instead in a minute dated 11 November 2014 it allocated a fixture date of 12 March 2015. It reserved leave to the Crown to seek vacation of the fixture if, by 6 February, “the Crown is in

a position to satisfy the Court that the proposed regulations will be implemented and that they will have the effect of rendering the appeal moot”

11 On 20 November 2014 the Minister received a report from officials recommending regulation. The report muddled which proceeding brought by New Health was being heard by the Court of Appeal on 12 March 2015. It said that was the South Taranaki appeal. But it went on to summarise the Medicines Act proceeding correctly. It noted that the Court of Appeal had adjourned the appeal pending the Crown being able to satisfy the Court by 6 February 2015 that the “regulation change will be implemented”. Vacation of the appeal would “save considerable legal costs for the Crown and free up valuable Court time for other fixtures”. Crown Law had evidently recommended urgent amendment to “provide legal clarity that fluoride when added to public drinking water is not a medicine”. Processes were available to have the regulations in place by the end of February 2015. Consultation would be necessary, but five weeks would be an adequate period. The Ministry would consult with local bodies and “with the lawyers representing the parties to the recent litigation”. The proposed amendment was “technically simple” and did not “involve a change in policy in view of the recent High Court decisions”.

12 The Minister accepted his officials' recommendation on 24 November 2014.

13 A consultation document was then posted on the Medsafe website on 25 November 2014. It noted that proposed amendment would “provide legal clarity that the fluoride substances used to treat drinking water are not medicines.” It referred to the Medicines Act proceedings, but not explicitly to the appeal. It noted benefits of regulation as the preservation of the status quo and the provision of legal clarity. It asked potential submitters whether they supported the amendment. And it asked whether there were other fluoride-containing compounds that ought to be included in the regulations.

14 By email the same day Crown Law informed counsel for New Health of the process. It sent her a link to the Medsafe page and the document. Three weeks later, on 17 December 2014 counsel for New Health emailed back. She expressed herclient's concern at the consultation timeframe. She requested that the submission period be extended to 12 February 2015. The following day Crown Law responded, declining extension. In part because it took the view the proposed regulations were not a change in policy. A further request for more time was made by counsel for New Health the next day. No response seems to have been given, presumably because of the proximity of Christmas.

15 The consultation period ran over the Christmas and New Year period, closing on 9 January 2015. Six weeks and three days, although a good part of that was across the Christmas break. Despite that fact, a total of 1411 submissions were received. These included New Health's submission, which was substantial and sent in on 24 December 2014. Of these 1411 submissions, 1339 were opposed. Seven complained about the timeframe for consultation.

16 A draft Cabinet paper was put before the Minister on 16 January 2015.

17 Officials' advice to the Minister accompanying the draft Cabinet paper canvassed the submissions briefly. It noted that many simply restated the arguments made unsuccessfully by New Health before Collins J or made claims not supported by an eminent 2014 scientific review of the safety and efficacy of fluoride undertaken jointly by the Royal Society of New Zealand and the Prime Minister's Chief Science Adviser, Sir Peter Gluckman. After close examination of the scientific evidence that review had concluded that fluoridation was safe, effective, beneficial and the most appropriate means of promoting public dental health. It had no disbenefits of any significance.

18 The officials' advice went on to recommended regulation be progressed promptly so that it would take effect before 6 February, observing that the Court of Appeal had “advised this would render the pending appeal by New Health moot.” That, of course, was incorrect. It had not done so.

19 The Cabinet paper explained the background to the regulations. It recorded that Crown Law had recommended, “as a matter of good public administration and to remove the basis for any further litigation on the matter, fast-tracking the makingof the regulation to put the issue beyond doubt.” A crisp summary of the consultation was given in similar tones to the preceding officials' advice. It recommended Cabinet agree to waive the normal 28 day rule in the interests of expediency. In its final sentence it asks Cabinet to:

Authorise the submission to the Executive Council of the Medicines Amendment Regulations 2015 for consideration at its first meeting of 2015 to remove the basis for further litigation.

20 Cabinet did so on 27 January 2015. The Order-in-Council is dated the same day. The amended regulations came into force on 30 January 2015.

21 On 5 February 2015 the Crown then filed a memorandum before the Court of Appeal noting that the regulations had taken effect and asserting that the appeal was now moot.

22 On 31 March 2015 New Health initiated these proceedings.

23 On 29 April 2015, and after hearing argument, the Court of Appeal issued a further minute in the Medicines Act appeal. It recorded that “assuming the amending regulations were validly made, this appeal would be moot.” The Medicines Act appeal was therefore adjourned, pending this Court's decision.

A res judicata?

24 The plaintiff also sought to challenge before me the correctness of the Medicines Act judgment on the basis that Collins J was wrong to find the compounds not to be medicines under the Act. This particularly affects the fourth issue considered in this judgment. 6 But it underlay the whole of New Health's case and formed the major part of Ms Hansen's written submissions.

25 There is here an identity of parties, a perfected judgment...